I was wrong about this being a bad day. Just two hours later I got a call from Mike, my reviewer in California. He was excited, talking real fast for a Californian. He explained that he had just started his day and was reviewing the 26th round of machine training. It happened when Mike was about halfway through the first set of 200 documents selected by the computer as likely relevant. An email popped up that made Mike come to a dead stop.

McDonald33@yahoo.com.

Sent: Friday, February 01, 20__ 3:45 PM

To: ♦♦♦♦♦♦@Google.com

Re:

F G

We can just take it from them.

If you deliver as agreed, you’ll be sit for life

Steve

Mike knew that insiders often referred to Google as just G. He also knew what F and FU meant. Still, he was surprised. He wondered if maybe his medicine was off, or something. The Steve here might be Steve McDonald, a notorious V.P. of China Space who was frequently mentioned in our notebooks. The recipient of the email was some kind of engineer at Google. He knew what the sit for life meant, even though there was an obvious type. It meant big money.

Mike double-checked the players list, and ran several near duplicate and family addition searches. He also ran concept searches and similarity searches. This one email led to several others. When he was sure he had the whole chain and the related web of documents, Mike called me. He had put the whole document-set into a special folder called WE_WIN. Mike was a very positive person. I hoped he was right.

I started looking at the docs while Mike talked. I speed read through all of them quickly and then started to ponder. Mike was excited, but said he was not 100% sure of the importance of his find. The emails were kind of off the wall, he said. But, it sure looked like industrial espionage to him. He knew that, at the very least, these documents all crossed the line into the Highly Relevant category. They were the first such documents we had found. We had the other two reviewers on the phone by then.

Mike explained what happened again while I studied the emails he found. The main one was an email from a personal account outside of corporate. The address was: McDonald33@yahoo.com. The email was just signed Steve, but it had to be Steve McDonald, the notorious V.P. of China Space. We expected Steve to be their star witness.

The other emails we found with multimodal search filled in the whole story. I am sure you have heard it all before. Typical corporate espionage and fraud. Plus the usual code-words to hide their communications. Keywords would never have found these. We had to give credit to the machine for that find. Although Google had suspected trade-secret theft for several weeks, they did not include it in the counter-claims. They had no evidence intellectual property had been taken, just suspicions. A search for evidence of internal employee fraud was not even part of our search instruction manual. But my reviewers are always on alert for stuff like that in corporate email collections. Unlike machines, they were on the lookout for anything out of the usual.

Multimodal hybrid machine learning had found the gold, the hot emails we needed to defeat the Borg review team. Based on our input, and using our multimodal hybrid methods, the software we were using had acquired the intelligence necessary to recognize these emails as highly relevant. The computer had seen a significant connection between the Google employee and V.P. McDonald., a connection that none of our other searches had uncovered. Our method had worked to find the golden needles, and so far at least, the monomodal fully automated approach had not.

I am not at liberty to disclose the name of the Senior Engineer at Google who sold out. We anticipate several civil and criminal investigations and have a hold in place. Google had previously collected all of the engineer’s email as part of preservation. They had a crack internal e-discovery team and followed best practices. We had also included the engineer in our first round of review. We did so based solely on his place in the upper-hierarchy. Plus, his particular position gave him almost full security access: level nine. Everyone with level nine security clearance, all five senior engineers, were included in our investigation.

The Google engineer did not have any direct involvements with the transactions at issue. We had no reason to give his ESI any special scrutiny, in fact, he came up as a B player in our first preservation list. The official records showed that he had no involvement in the China Space deal that blew up. He was, however, copied on key emails and documents sent to upper management, so we decided to make him a Class A. That meant we looked at his ESI in the first round.

I was very happy by the find. I told the team I was sure this was the big break we had been hoping for. This Google engineer fit the classic profile for a corporate fraudster. His other email made it clear that he was primarily thinking about retirement and travel, especially in Asia. He also seemed to have few family members or much of a personal life. I told my reviewers that these documents looked liked smoking guns to me. Not only that, the guns were all good for us and bad for them. That always made the find of strong evidence much more enjoyable.

I explained to them that although I thought the documents were great, I would not know for sure how great until I got a response from my whole trial team. I especially wanted to hear from the attorneys who knew the witness statements from the blitz they took last month. They had a better grasp of the merits of the case than I did. Not really my job. I just had to get the facts. They had to win the case. But I did know that these emails would make their job a lot easier.

I ended my meeting with the reviewers by exchanging thanks and congrats, and said to take the rest of the day off. They would still have a lot to do over the next week to finish the search project. There could be more hot documents like this. I also reminded them the Borg could find these same hot documents too, and maybe more. Although I shared with them my belief that this was unlikely.

Feeding Steak to the Sharks

Next, I had the great pleasure of telling the trial boys what we had found. I prepared a short memo with the five hot emails attached and emailed the memo to the whole trial team. I told them that although odd, these emails looked very important to us. What did they think? I have found it is best to let them draw their own conclusions.

Less than fifteen minutes later I got my first response. This was a home run with the bases loaded. Each trial member checked in and agreed. Everyone speculated as to what went on between the Google Engineer and the China Space Vice President. It looked pretty obvious to us, and we knew most judges would see it that way too.

They each came up with different ways the emails could be used to destroy China Space’s case. They then started plotting on the best ways to spring this new evidence on the other side. They wanted to use it to try to bring this case to a rapid end. They expected to be able to get a settlement where China Space paid Google for full and complete releases. The emails were even more powerful than I had anticipated. The trial team was almost unanimous in thinking that they were sure-fire SJ material. The one neigh sayer urged caution until we see what other email might be in the system. Still, the energy level of the trial team was high. We were on a flat fee, and we had already gone past the pleading stage. Settlement now could be very profitable for both our client and the firm. Notice I said client first, although that was not what I was thinking.

There was a preliminary mediation scheduled soon. The timing was perfect. The first meeting was scheduled for after our review had to be complete, and after the sample sets had to be disclosed per the QT protocol, but before the actual production of documents. We would not have to disclose the killer emails before the mediation. However, both sides knew that some key document exchange at the first mediation hearing was typical and to be expected. That helped make the first mediation hearings more interesting. The mediation metrics for last year show a 33% settlement rate in early mediations for corporate suits with $10,000,000 or more in dispute. Smaller suits always had a lower settlement rate. Google and China Space both knew these same statistics and so both sides would come armed for bear.

Google Gets the Good News

We all then got on the phone with Linda. She was thrilled. She asked me which team had found it. She was even happier to learn our Federation had found them, not the Borg. Linda then listened to the trial team talk on the merits, implications, strategy, and possible settlement range for the upcoming mediation. Later that day I called Google and had a one-on-one with Linda to discuss how to handle the Borg team. We agreed to be very cautious and made a plan to create clear proof of the Borg team default.

The Borg could still find these same emails, of course, and in that case we would not have proof of defective software. But I doubted that would happen. It would be blind luck to turn up these handfull of emails in a random sample of four million Documents. I knew how their AI was training by the reports. I doubted the AI they were creating would ever see any connections with the hot, but odd emails we had found. Linda and I finalized our plans for the end game of the Borg battle. Resistance was not futile.

I then shared the good news with some friends in my firm and went home and took a nap. Victory or not, the weariness of the past nine days was taking its toll.

About the Blogger

Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of Electronic Discovery Best Practices, and e-Discovery Team Training, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.

Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in general AI Ethics. issues. Ralph was the only private lawyer to participate in the 2015 and 2016 TREC Recall Track of the National Institute of Standards and Technology and prior to that competed successfully in the EDI Oracle research.

Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management. Ralph also received the "Most Trusted Legal Advisor" industry award for 2016-17 by the Masters Conference. His full biography may be found at RalphLosey.com.

Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

Sedona Principles 3rd Ed

1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.

12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.